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Volume XI, Number 212

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Charitable Immunity in Wisconsin

Summary of the State’s Position on Charitable Immunity

The Wisconsin Supreme Court abolished the common law concept of charitable immunity in the 1960s. Wisconsin statutes provide limited liability for: (1) volunteers of non-profit corporations, (2) directors, officers, and volunteers of the Roman Catholic church and other religious organizations, (3) volunteer health care providers, (4) volunteer firefighters, and (5) persons engaged in donations or non-profit sales of food, emergency household products, emergency medical supplies, and waste materials.

Summary of Pertinent Statutes on Charitable Immunity and Volunteers

Wis. Stat. § 187.33 Limited Liability of Volunteers – Roman Catholic Church

A volunteer is defined as an individual, other than an employee of the incorporated Roman Catholic church, who provides services to or on behalf of the incorporated Roman Catholic church without compensation. Volunteers are immune from civil liability for acts or omissions unless the volunteer engages in criminal behavior or willful misconduct, or is acting within the scope of official duties as a director or officer. Exceptions include governmental proceedings other than those brought in the capacity as a government contractor, an express private right of action under state or federal statute for violations of state or federal law, negligent operation of a vehicle, acts or omissions within the scope of practice under license, certification, permit, or registration, and proceedings for actions for which volunteer is immune under various other state statutes.

Wis. Stat. § 187.43 Limited Liability of Volunteers – Other Religious Organizations

A volunteer is defined as an individual, other than an employee of the religious organization, who provides services to or on behalf of a religious organization without compensation. Volunteers are immune from civil liability for acts or omissions unless the volunteer engages in criminal behavior or willful misconduct, or is acting within the scope of official duties as a director or officer. Exceptions include governmental proceedings other than those brought in the capacity as a government contractor, an express private right of action under state or federal statute for violations of state or federal law, negligent operation of a vehicle, acts or omissions within the scope of practice under license, certification, permit, or registration, and proceedings for actions for which volunteer is immune under various other state statutes.

Wis. Stat. § 187.32 Limited Liability of Director and Officers – Roman Catholic Church

Directors and officers of the incorporated Roman Catholic church acting within their official capacity are immune from civil liability unless the director or officer engages in criminal behavior, willful misconduct, or exhibits bad faith in a matter where the director or officer has a material conflict of interest. Exceptions include governmental proceedings other than those brought in the capacity as a government contractor, an express private right of action under state or federal statute for violations of state or federal law, and any duty relating to funds held in trust for the operation of a cemetery.

Wis. Stat. § 187.42 Limited Liability of Director and Officers – Other Religious Organizations

Directors and officers of a religious organization acting within their official capacity are immune from civil liability unless the director or officer volunteer engages in criminal behavior, willful misconduct, exhibits bad faith in a matter where the director or officer has a material conflict of interest, or derives an improper personal profit. Exceptions include governmental proceedings other than those brought in the capacity as a government contractor, an express private right of action under state or federal statute for violations of state or federal law, and any duty relating to funds held in trust for the operation of a cemetery.

Wis. Stat. § 181.067 Limited Liability of Volunteers – Nonstock Corporations

A volunteer is defined as an individual, other than an employee of the corporation, who provides services to or on behalf of the corporation without compensation. Volunteers are immune from civil liability for acts or omissions unless volunteer engages in criminal behavior or willful misconduct, or was acting within the scope of official duties as a director or officer, or was negligent and did not have a credential, license, registration, certification, permit or approval in the practice of a profession, trade, or occupation that requires such. Exceptions include governmental proceedings other than those brought in the capacity as a government contractor, and an express private right of action under state or federal statute for violations of state or federal law.

Wis. Stat. § 146.89 Volunteer Health Care Provider Program

A volunteer health care provider is defined as an individual who is a licensed physician, nurse, physician’s assistant, midwife, dentist, dental hygienist, optometrist, pharmacist, chiropractor, podiatrist, physical therapist, psychologist or therapist, certified social worker, or certified dietitian, and who receives no income from the practice of their health care profession when providing services at the nonprofit agency. Volunteer health care providers in Wisconsin are generally classified as state agents unless the volunteer is licensed, certified, or registered out of state, and is determined by the department of health services to have sufficient liability insurance coverage. Recoverable amounts are capped; no punitive damages are allowed; and acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions receive absolute immunity. Volunteer health care providers who are not classified as state agents are immune from civil liability for acts and omissions resulting from providing services unless the volunteer violates a state statute or rule or engages in gross negligence or willful misconduct.

Wis. Stat. § 893.80 Claims Against Governmental Bodies, Officers, Agents, Employees

A volunteer is defined as a person who provides services or performs duties for and is subject to the right of control of, a volunteer fire company, political corporation, or governmental subdivision or agency thereof without compensation. The volunteer fire company, political corporation, or governmental subdivision or agency and its officers, officials, agents, and employees are subject to liability for acts done in their official capacity or in the course of their agency or employment, but written notice of the claim must be served on the volunteer fire company, political corporation, or governmental subdivision or agency, and on the officer, official, agent, or employee within 120 days of the event giving rise to the claim. Recoverable amounts are capped; no punitive damages are allowed; and acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions receive absolute immunity.

Wis. Stat. § 895.51 Civil Liability Exemption: Food or Emergency Household Products; Emergency Medical Supplies (Amended by Act 185/COVID-19)

A charitable organization is defined as an organization whose contributions are deductible from taxable income under Wisconsin law. Any person who donates or sells food at cost to a charitable organization is immune from civil liability for death or injury caused by the donated food. Any person who donates or sells at-cost qualified emergency household products to a charitable organization in response to a government-declared state of emergency is immune from civil liability caused by the emergency household product. Any person who donates or sells emergency medical supplies at cost to a charitable organization in response to the public health emergency caused by the 2019 novel coronavirus pandemic is immune from civil liability for death or injury caused by the donated emergency medical supplies. Any charitable organization which distributes free of charge qualified food, emergency household products, or emergency medical supplies to any person is immune from civil liability for death or injury caused by the qualified food, emergency household products, or emergency medical supplies.

Wis. Stat. § 895.517 Civil Liability Exemption: Solid Waste Donation or Sale

A charitable organization is defined as an organization whose contributions are deductible from taxable income under Wisconsin law. Any person who donates or sells at cost to a charitable organization solid waste, or a material separated from mixed soil waste, is immune from civil liability for death, injury, or property damage caused by the solid waste or material.

Applicable Case Law

The Wisconsin Supreme Court abolished the common law doctrine of charitable immunity in the early 1960s. The Court first abolished the tort immunity of charitable hospitals with respect to paying patients in Kojis v. Doctors Hosp., 12 Wis. 2d 367 (1961). The following year, the court presided over Duncan v. Steeper, 17 Wis. 2d 226 (1962) and extended its prior ruling in Kojis to include indigent or non-paying patients. The next year, the court abolished the immunity of religious organizations for negligence in Widell v. Holy Trinity Catholic Church, 19 Wis. 2d 648 (1963).

Volunteer fire companies are generally recognized as either charitable or social welfare organizations. Immunity for volunteer firefighters in Wisconsin is inextricably linked to governmental immunity because firefighters perform a governmental function. Municipal immunity derives from common law and was first adopted by the Wisconsin Supreme Court in 1873. Under municipal immunity, liability is the rule, and immunity the exception.

Both state and municipal immunity for public officers in their performance of acts within the scope of employment are subject to four exceptions identified in case law. There is no public officer immunity against liability associated with: 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful, and intentional. These exceptions along with an explanation of what constitutes a ministerial duty and a known and compelling danger are analyzed in Lodl v. Progressive Northern Ins. Co., 253 Wis.2d 323 (2002).

Applying the aforementioned analysis in Brown v. Acuity, 348 Wis.2d 603 (2013), the Wisconsin Supreme Court held that public officer immunity did not shield from liability a volunteer firefighter who silently ran a red light and collided with a passenger vehicle.

©2021 von Briesen & Roper, s.cNational Law Review, Volume XI, Number 143
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About this Author

Mmeli Obi Litigation and Risk Management Lawyer von Briesen Roper Law Firm Neenah Wisconsin
Associate

Mmeli Obi is a member of the Litigation and Risk Management Practice Group in the Neenah office.

Prior to law school, Mmeli had over a decade of experience working as a Senior Loan Analyst for a finance company in Ripon, Wisconsin. There she analyzed Uniform Commercial Code filing requirements and compliance, reviewed loan contracts and ensured compliance with trust rules, state statutes and tax law.

During law school Mmeli worked as a licensed student attorney in the Loyola Community Law Center where she represented...

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